Shaw v. Smith

8 Ind. 485

• Court: Indiana Supreme Court
• Decided: January 22, 1857
• Status: Published

Opinion

Stuart, J.

Habeas corpus to obtain the possession of an infant.

Smith was the duly appointed guardian of Stephen A. McCracken, a minor.

As such, guardian he filed his affidavit for a writ of habeas corpus for the person of his ward, alleging him to be illegally restrained of his liberty by Victor Shaw, in, &e.

The writ was issued, return made thereto, exceptions to the return sustained, and the minor awarded to the custody of Smith, as his guardian. .

To this opinion Shaw excepted, and appealed.

The return to the,writ is in these words, viz.: “This respondent, for return to said writ, says that every allegation in said petition as charged, is untrue. This respondent, for a further return to this writ, denies that said Stephen is restrained, or, that said Smith is guardian, &c. Eor further return, he says that Mary Shaw, the mother of said infant, in her last sickness, and who is now dead, by her will appointed this respondent as the guardian of the said infant Stephen, his father being dead long before the mother.”

This return was signed and sworn to by Shaw.

The return was clearly insufficient. The statute requires that the return should state — 1. The cause of restraint. 2. If the authority be in writing, he shall return a copy, and produce the original on the hearing. 3. And also, inter alia, produce the party restrained on the hearing, unless prevented by sickness, which must be shown in the return. 2 R. S. p. 195. The hearing is to proceed in a summary way. No regular pleadings are contemplated. Id. p. 195, s. 724.

In this instance, the exception, in the nature of a demurrer, was well taken. Shaw should have appended a copy of the will as part of the return, and produced the oi’iginal on the heaxing.

In these summary px-oceedings in the court whose peculiar duty it is to guard the intex’ests of minors, this Court will not go beyond the statute to hold them to' strict regulaxity. A strong case must be made for an interference.

R. L. Waif ole and K. Ferguson, for the appellant. J. T. Roberts, for the appellee.

Per Curiam.

The judgment is affirmed with costs.